883.05/302
The American Minister in Egypt (Gunther) to the Egyptian Prime Minister and Acting Minister for
Foreign Affairs (Mahmoud
Pasha)19
Cairo, April 18, 1929.
No. 95
Excellency: I have the honor to refer to
paragraph No. 4 on page 2 of my Note No. 65 of January 31, 1929, in
reply to the Note received from His Excellency Hafez Afifi Bey under
date of October 28, 1928, reopening the general subject of the
capitulatory régime in Egypt and requesting particularly that the
specific proposals in this sense made by the Royal Egyptian Government
in its Note of December 25, 1927, be recalled to the attention of the
Government of the United States.
By the paragraph in question, after informing Your Excellency’s
Government, in reply to the fourth of the proposals in question, that my
Government recognizes the desirability of creating an additional chamber
in the Mixed Court of Appeals, I had the honor to recall to the
attention of the Royal Egyptian Government the position of the American
Government in favor of bringing about a return to the principle of
equality of representation as among the principal capitulatory powers
represented in the Mixed Court judiciary, including, specifically, the
proposed new chamber. I added, under instructions from my Government, a
statement to the effect that, as His Excellency Hafez Afifi Bey was
aware, the American Government had never acquiesced in the departure,
which has taken place in recent years, from this principle.
I am now in receipt of further instructions from my Government directing
me to supplement the representations on this particular subject made in
my last Note. In particular, I am desired to set forth clearly that a
failure to recognize this principle of equality insofar as the United
States is concerned in the forthcoming appointments to the Mixed Court
of Appeals and of First Instance will inevitably lead to an unfortunate
impression upon my Government.
I had anticipated seeking an early occasion to discuss this matter in
detail with Your Excellency. Unfortunately, however, my present illness
prevents my doing so. I take this means, therefore, to bring the matter
again to the attention of Your Excellency’s Government desiring
particularly to acquaint Your Excellency with the very specific nature
of my present instructions.
[Page 943]
Your Excellency will, of course, realize that my Government has no
intention of making its final assent or dissent to the proposals for
judicial reform as submitted by the Royal Egyptian Government in its
Notes of December 25, 1927 and October 28, 1928, the subject of a
diplomatic quid pro quo. These proposals have
received the sympathetic consideration of my Government which will
continue to consider them strictly on their merits. And it would be
farthest from my mind to suggest that the final assent of my Government
should be contingent upon the appointment to the Mixed Courts of
additional American judges.
With respect, however, to the fourth of the proposals in question my
Government is, as I have already stated, earnestly desirous that with
its adoption there should be, at the same time, a formal recognition of
the principle that no preponderance should be given to any one
nationality when selecting the foreign members of the Mixed Court
judiciary.
Something over two years ago, following an exchange of Notes, dated
respectively April 9 and May 16, 1926,20
my predecessor on March 28, 1927, set forth orally in the course of an
extended official interview with His Excellency Sarwat Pasha, then Royal
Egyptian Minister for Foreign Affairs, the detailed views of my
Government with respect to the question of the applicability to the
selection of the Mixed Court judiciary of the principle of equal
representation amongst the principal capitulatory powers.21 This principle, my
predecessor was instructed to maintain, if carried to its logical
conclusion, would necessarily recognize the fact that the representation
of any lesser capitulatory power or of any non-capitulatory country
should not exceed that accorded to the principal powers, a conclusion
sanctioned also by the practice of nearly forty years. My predecessor
was to add that there was no doubt in the mind of his Government that at
the time of the entry into force of the Khedive Ismail’s project of
judicial reform this principle and its logical consequence were properly
considered as applying to the selection of the foreign judiciary of the
proposed Mixed Tribunals.
In his Note of April 9, 1926, my predecessor quoted an extract from a
Note addressed on May 26, 1873 to His Excellency Nubar Pasha by Sir
Henry Elliot, at that time His Britannic Majesty’s representative at
Constantinople,22
wherein the Egyptian Government [Page 944] was informed that the British Government was “prepared forthwith to
accept the proposed arrangements respecting the judicial reforms in
Egypt” on the condition, amongst others, “of avoiding giving any
preponderance to one nationality over another in the selection of [the]
judges either in constituting the tribunal or in supplying the vacancies
that may from time to time occur among them.” A copy of this letter was
formally transmitted to my Government by the American Minister at
Constantinople under covering despatch dated May 27, 1873, and the
principle outlined therein was considered by my Government as
fundamental when, by Proclamation of the President, dated March 27,
1876,23 the adherence of the United States was
given to the judicial reform in Egypt.
Having thus stated the general proposition upon which my Government’s
contention in this matter is based, I have the honor to enclose a
memorandum elaborating in some measure the considerations which led
logically to the adopting of that proposition. This memorandum, I
venture to point out to Your Excellency, constitutes but little more
than a written statement of the oral reply made by my predecessor to the
aforementioned Note received from the Royal Egyptian Ministry for
Foreign Affairs under date of May 16, 1926.
In the opinion of my Government, the present is a particularly opportune
and propitious moment at which to press for a recognition of this
principle of equality as a general proposition as well as for its
application, insofar as may be reasonably possible, to the present
situation. I have already had occasion to make this clear both to His
Excellency Hafez Afifi Bey and to the Judicial Advisor in the course of
friendly informal conversations on the subject.
At the present time Your Excellency’s Government is considering the
question of the establishment of an additional chamber of five judges on
the Mixed Court of Appeals and is proceeding to the appointment of three
additional judges of first instance. Five of these eight judgeships
will, of course, be filled by the appointment of foreign nominees. Those
of first instance, I am creditably informed, are to be a Belgian and a
Greek national, in accordance with decisions already taken by Your
Excellency’s Government and communicated respectively to the Belgian and
the Greek Governments. And I have learned from the Judicial Advisor that
Your Excellency’s Government is considering adopting similar decisions
whereby the French and Italian Governments and that of one of the lesser
powers would be invited to nominate judges to fill the three proposed
foreign posts on the Mixed Court of Appeal[s].
[Page 945]
The present representation of the different foreign powers on the Mixed
judiciary is, as Your Excellency is aware, as follows:
Of the four remaining principal capitulatory powers: Great
Britain, 7; Italy, 5; France, 4; United States, 3.
Of the eight lesser capitulatory powers: Belgium, Greece, Norway
and Spain, each 3; and Denmark, Netherlands, Portugal and
Sweden, each 2.
Of the non-capitulatory powers: Russia and Switzerland, each 2;
and Germany, 1.
From these figures it is obvious that the representation of the United
States on the Mixed Courts is not commensurate with its position as a
principal capitulatory power or in accordance with the principle of
equality which is enunciated above and elaborated in the enclosed
memorandum. The other three principal capitulatory powers are each
represented by a greater number of judges than is the United States, and
half of the lesser capitulatory powers have an equal representation.
If, however, the five presently considered appointments are made on the
basis of the information mentioned above, this disparity which is now
obvious will become even more striking. Not only will the present
disparity between the representation of the three other principal
capitulatory powers and that of the United States be increased, but that
of two of the lesser capitulatory powers will become greater than that
of the United States, and one other of the lesser powers will advance
into a place at least equal to that of the United States.
In conclusion, I have the honor to express the hope that Your Excellency
will be disposed to consider the situation set forth above in the same
friendly spirit which has always characterized the relations which it
has been my very great pleasure to maintain with Your Excellency’s
Government. I have set forth my Government’s position in favor of
bringing about a return to the principle of equality of representation
as among the principal capitulatory powers represented in the Mixed
Court judiciary and of avoiding giving any preponderance to one
nationality over another in the selection of the foreign judges. And I
have stated, under instructions from my Government, that a failure to
recognize this principle insofar as the United States is concerned in
the forthcoming appointments will inevitably lead to an unfortunate
impression upon the American Government. I feel certain that with Your
Excellency’s support a solution of the matter satisfactory alike to our
two Governments will be found.
I avail myself [etc.]
[Page 946]
[Enclosure]
Memorandum
To accompany Note No. 95 of April 18, 1929, to His Excellency the
Royal Egyptian Minister for Foreign Affairs, p. i.
on the
Question of the Applicability to the Mixed Court Judiciary of the
Principle of Equality of Representation Among the Principal
Capitulatory Powers and of Avoiding Giving any Preponderance to
One Nationality Over Another in the Selection of the Foreign
Judges
and being in the nature of a written
Reply to the Note No. 29.9/2 (1065) addressed by the Royal
Egyptian Ministry for Foreign Affairs to the American Legation,
Cairo, under date of May 16, 1926.
In the American Minister’s Note No. 339 of April 9, 1926, to which
the Royal Ministry’s above-mentioned Note of May 16th was in reply,
the Minister quoted extracts from the letter addressed by Sir Henry
Elliot to Nubar Pasha under date of May 26, 1873, wherein the
Egyptian Government was informed that the British Government was
“prepared forthwith to accept the proposed arrangements respecting
the judicial reforms in Egypt.” After a careful study of the
available correspondence the American Government concurs in the
conclusion which the Minister appears to have drawn from these
extracts, i. e. that one of the conditions made by the British
Government in giving its adherence to the Khedive Ismail’s program
of judicial reform, as drafted by the International Commission which
sat in Constantinople during the latter months of 1872 and the early
months of 1873, was that “of avoiding giving any preponderance to
one nationality over another in the selection of judges either in
constituting the tribunal or in supplying the vacancies that may
from time to time occur among them.” Sir Henry Elliot’s letter
appears to be clear on this point, for he adds that “Her Majesty’s
Government have instructed me to intimate that their final
acceptance was dependent upon the maintenance of this
principle.”
Stated in other terms, the principle to which expression was given by
Sir Henry Elliot was that there should be equality of representation
as between the principal capitulatory powers in the appointment of
foreign judges chosen to serve on the Egyptian mixed tribunals. This
principle carried to its logical conclusion would necessarily
recognize the fact that the representation of any lesser
capitulatory power or of any non-capitulatory country should not
exceed that accorded to each of the principal powers, a conclusion
sanctioned by the practice of nearly forty years. There is no doubt
in the mind of the American Government that, at the time of the
entering into [Page 947] force of the
Khedive Ismail’s project of judicial reform, this principle and its
logical consequence were properly considered as applying to the
selection of the foreign judiciary of the proposed mixed tribunals,
i. e. to the selection of the foreign judges to serve both on the
Court of Appeal[s] as is evident from the earlier negotiations, and
on the inferior courts, as evinced by the later negotiations which
led to the choice of two magistrates from each of the principal
capitulatory nations to serve on the courts of first instance. A
copy of Sir Henry Elliot’s letter was formally transmitted to this
Government by its Minister at Constantinople under covering despatch
dated May 29, 1873, and the principle outlined therein was
considered by this Government as fundamental when, by proclamation
of the President dated March 27, 1876, the adherence of the United
States was given to the judicial reform in Egypt.
As a matter of fact, from 1876, the year in which the Mixed Courts
commenced to function, to 1915, there was but one departure from
this principle of equal representation, i. e. when a French national
was appointed to fill one of the two supplementary seats, created in
1879, on the Court of Appeal, thus giving to France a total
representation of four, or one greater than that of any other
foreign power, on the mixed judiciary. With respect to this case,
however, it should be noted that, upon the retirement of the French
appointee, his place was filled by a judge of Portuguese
nationality.
In 1915, following the proclamation of the British protectorate over
Egypt, one French and two British judges were appointed to fill
three of the four vacancies left in the judiciary of the first
instance courts by the forced vacating of the seats of the German
and Austrian judges. The fourth of these vacancies was filled the
following year by the appointment of a judge of Italian nationality.
Further, in 1920 and resulting indirectly from the elimination of
German, Austrian and Russian representation on the Court of Appeal,
two additional British judges were appointed to serve on that
tribunal. These comparatively recent departures from the principle
of equal representation were noted by the American Government but no
formal objections were made to the Egyptian or Allied governments
for the reason that the American Government had under advisement
certain proposals of the British Government which, should they have
been adopted by the interested foreign powers, would have led to the
conclusion of agreements between them and Great Britain whereby the
latter’s special position in Egypt would have been recognized and
whereby there would have been confided to Great Britain the powers
necessary to enable it to discharge the duties which that special
position was alleged to impose upon it both towards Egypt and
towards foreign nationals there residing.
[Page 948]
An essential feature of these proposals was that which provided for a
“reconstitution of the mixed tribunals” amounting in effect to the
transfer thereto of the jurisdiction exercised in Egypt by the
consular courts of the various capitulatory powers. That this
particular matter was still under consideration at the time of the
most recently expressed adhesion of the powers to the Mixed Courts
is evident from the phraseology of the Egyptian Government’s
circular Note of September 4, 1921, addressed to the representatives
of the capitulatory powers in Cairo.24 In that circular the Egyptian Foreign
Office, when requesting the representatives to secure the adherence
of their governments “to continue the present Mixed Courts for an
indefinite period,” stated that “the Egyptian Government does not
find it expedient to establish a new organization for these courts
by the date mentioned.” It was with the foregoing considerations in
mind that the American Minister in the course of his conversation
with His Excellency Sarwat Pasha on March 28, 1927, when mentioning
the various precedents for the appointment of a British judge to
succeed Judge Booth, referred to them as “not, however, necessarily
closed to objection.” These same considerations led the American
Government logically to the necessity of instructing the Minister to
file with the Royal Egyptian Minister for Foreign Affairs an oral
exception to the closing paragraph to the Royal Ministry’s Note of
May 16, 1926.
Leaving for the moment further consideration of the Royal Egyptian
Government’s Note of May 16 and returning to the discussion of the
applicability to the foreign judiciary of the principle of equal
representation as amongst the powers, it is to be noted that not
only did Sir Henry Elliot express, on behalf of his Government,
adherence to this principle, but he clearly indicated, also, that
his Government’s action was taken specifically in response to
proposals received from the Khedive Ismail. The recognition by Egypt
of this principle is, in the opinion of the American Government,
clearly to be inferred from that passage of Sir Henry Elliot’s
letter in which he states that “the question … respecting the
nationality of judges … received the attention it deserved from Her
Majesty’s Government who concur in the view of the Khedive as to the
importance of avoiding giving any preponderance to one nationality
…”. As of collateral interest in this connection, reference may be
made also to letters addressed by Nubar Pasha to the American Chargé
d’Affaires and to the Italian Minister at Constantinople under dates
of January 17 and February 24, 1873 (i. e. some months earlier than
the date of the British Note) wherein, with reference to the
question of equal representation amongst the powers in the choice of
judges for the proposed court of appeal, he stated, in part, as
follows: [Page 949]
To the American Chargé dAffaires: “…
l’intention de Son Altesse est de composer notre cour
d’appel de magistrats pris dans les pays qui ont été
representé et ont étudié la question dans la commission
internationale du Caire.”25
To the Italian Minister: J’ajouterai
même au delà de ce que vous m’avez demandé, mon chèr comte,
que Son Altesse tient à cette composition et elle entend la
maintenir pendant l’époque quinquennale d’essai, de sorte
que, si pendant cette periode quelqu’un des conseillers
devrait, pour une cause ou pour une autre, quitter sa
position, elle entend le remplacer en engageant un autre
magistrat de la même nationalité.”26
Returning now to the question raised in the Royal Egyptian
Government’s Note of May 16, 1926, it is to be recalled that in his
conversation of March 26 [28], 1927, with His
Excellency Sarwat Pasha the American Minister considered the matters
discussed in that Note, paragraph by paragraph, as follows:
1) Paragraph 1. The American Minister pointed out that the Royal
Egyptian Government had evidently read into his Note of April 9,
1926, a meaning which did not follow from the statements made
therein. He stated that it was not his intention, nor was it the
intention of his Government, to propose that the then vacant seat on
the Cairo Mixed Court of First Instance should be filled by an
American nominee.
2) Paragraph 2. With the foregoing discussion of the principle of
equal representation in mind, the American Minister pointed out that
such of the pertinent correspondence, exchanged between Egypt and
the powers during the decade beginning 1867, as has come to the
attention of the American Government did not appear to indicate that
any formal acceptance was necessary on the part of the Egyptian
Government to [of?] the statements contained
in Sir Henry Elliot’s Note, for the reason that the proposals in
question originated with the Khedive Ismail and were accepted by the
British Government as one of the bases for the judicial reform.
In this connection also the American Minister stated that he would be
pleased to receive, for communication to his Government, copies of
the correspondence or other documents upon which the Royal Egyptian
Ministry for Foreign Affairs relied to negative the sense of Sir
Henry Elliot’s letter.
3) Paragraphs 3 to 6, inclusive. The American Minister pointed out
that there was, of course, no disposition on the part of the
American Government to question the statement contained in paragraph
3 of the Egyptian Government’s Note of May 16 that “the Tribunals of
the Reform are Egyptian courts.” However, the further statement made
in this connection, i. e. that “the freedom of [Page 950] the appointment and of the choice of
the judges is not limited except by the conditions imposed in
Article 5 of the Règlement d’Organisation Judiciaire,” is open to
the objection that it was specifically with respect to this article
that extensive assurances and explanations were offered by the
Egyptian Government to the powers during the negotiations which led
up to the definitive establishment of the Judicial Reform. The
American Minister added that his Government was well aware of the
attitude of the Egyptian Government in the matter of the selection
of the individual foreign judges to serve on the courts, the
appointment and choice of whom was vested in the Egyptian Government
by the article in question. This position had been explained in
detail by Nubar Pasha in a Note addressed to the American Agent and
Consul General at Cairo under date of May 22, 1874, agreeing, upon
the recommendation of President Grant, to appoint Mr. Victor C.
Barringer as a judge on the projected mixed court of appeal. The
American Government accepted that position as one necessary to the
maintenance of the principle that the proposed courts were to be
truly Egyptian in character.
The American Minister then stated that his Government could not,
however, but feel that the contentions set forth in paragraphs 3 to
6 of the Royal Egyptian Government’s Note were not wholly pertinent
to the issue. It was clear, he stated, that his Government willingly
concurred in the contention of the Egyptian Government that it had
accorded to each of the principal capitulatory powers a minimum
representation in the mixed judiciary, i. e. a minimum of one judge
on the Court of Appeal and of two judges on the inferior courts, but
he formally questioned the implication, to be drawn from the further
statements made in this connection, that the choice of foreign
judges for the positions not thus filled might properly be exercised
by the Royal Egyptian Government without applying the principle that
no preponderance was to be given to any one nationality.
The American Minister concluded his comment on the four paragraphs in
question by stating that his Government relied, therefore, both on
the understanding existing at the time of the establishment of the
courts and on the sanction which almost forty years of successful
practice had given to the arrangements then put into effect to
establish the desirability of a return to the application of the
principle of equal representation amongst the principal capitulatory
powers to the composition of the mixed judiciary. In view of the
recent departures from this principle, he added, it is probable that
such return could most appropriately be effected either by the
gradual replacement, when occasion should permit, of the additional
British, French and Italian judges now serving on the courts or by
the appointment thereto of such numbers of additional American,
French and Italian or other judges as would re-establish equality of
numbers amongst the representatives of the four remaining principal
capitulatory powers.
4) Paragraph 7. The American Minister set forth to His Excellency
Sarwat Pasha the pertinent comment on the question raised in this
paragraph as contained in the introductory passages of the present
memorandum, particularly that beginning on page four.
The American Minister concluded his remarks by stating that his
Government did not desire nor did it feel that it needed to enter at
that [Page 951] time into a more
detailed discussion of the position taken by the Royal Egyptian
Government in its Note of May 16, 1926. That position, refusing as
it did to recognize as applicable the aforementioned principle of
equal representation, was so evidently opposed to the views of his
Government, such denial was so clearly contrary to the understanding
of the American Government both at and continuously since the time
of its first adherence to the Mixed Courts, that it was felt that,
before making any further observations with respect thereto, should
such prove necessary, it was essential to request that the Egyptian
Government set forth at greater length and in greater detail the
arguments which led it to the conclusions expressed in its Note of
May 16, 1926. The American Minister requested, therefore, that His
Excellency Sarwat Pasha furnish him in due course, for communication
to his Government, with an exposé of the evidence upon which was
based the conclusion expressed in that Note with respect to Sir
Henry Elliot’s letter.
It is to be noted also that in response to the American Minister’s
representations as set forth above His Excellency Sarwat Pasha
stated that he thoroughly understood the position taken by the
American Government and that, after taking up in due course with the
Royal Egyptian Minister of Justice the various particular points
raised by the American Minister, he would make appropriate reply.
The American Legation has no record of any such reply having been
made either orally or in writing.
In addition to the foregoing recapitulation of the sense of the
verbal reply made on March 28, 1927, to the Royal Ministry’s Note of
May 16, 1926, it is believed to be pertinent to add at this time the
following more detailed comment with respect to the statements made
in the sixth paragraph of that Note.
In the paragraph in question it is stated that “the Egyptian
Government has always reserved to itself the right to choose freely
among all the capitulatory and even non-capitulatory powers for the
positions of judges created or to be created in the Court of Appeal
and in the courts of first instance” and that “this has been
recognized in various correspondence between Egypt and the powers.”
In this connection the Legation has the honor to state that diligent
search has been made in its archives and in those of the Department
of State, Washington, and that no record has been found of any
correspondence between Egypt and the United States which thus
contravenes the basic principle accepted as fundamental when by the
Proclamation of the President dated March 27, 1876 the adherence of
the United States was given to the judicial reform in Egypt. The
Legation desires, therefore, to reiterate the request made on March
28, 1927, by the American Minister, that it be furnished in due
course, for [Page 952] communication
to the American Government, with copies of any papers which the
Royal Ministry may believe necessary to a further consideration of
the question at issue.
In the paragraph in question it is stated also that “at the beginning
of the reform there were three Dutchmen and three Belgians in the
courts of first instance.” The American Government does not
contravert this fact. It desires to point out, however, that at that
time, the United States had, as had each of the other six principal
capitulatory powers, an aggregate representation of three judges,
one on the appeal bench and two on the courts of first instance,
such aggregate representation more than offsetting, in the opinion
of the American Government, the three first instance posts then held
by Belgian and Dutch judges.
The paragraph in question concludes by bringing out the fact that
“later two Swiss judges were appointed although Switzerland is not a
capitulatory country.” As the American Government has understood the
circumstances of the nomination of these two Swiss judges and
without wishing in any sense to comment on the legality of their
appointment, the action in question was taken rather with a view to
maintaining the principle of equality of representation than to
departing therefrom. It appears from the Legation’s current records
of the period in question that there had been from 1900 onwards a
considerable increase in the business of the Mixed Courts, with the
result that the Egyptian Government was faced with a situation not
unlike that which it is desired effectively to meet today. The
Legation’s records suggest that at first no new judges of first
instance were appointed to meet this situation because of this
principle of equal representation. The breaking up of the dual
Monarchy of Norway and Sweden then appears to have afforded an
opportunity for the appointment in 1907 of two new judges, a
Norwegian and a Swede. And, two years later, the Legation’s records
suggest that it was seen that further judges of first instance were
required and that to meet the situation Switzerland was asked to
designate first but one judge and later a second.
